Citation Nr: 0941674
Decision Date: 11/02/09 Archive Date: 11/09/09
DOCKET NO. 03-20 540 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for residuals of a back
injury.
2. Entitlement to service connection for a bilateral leg
disorder including the knees.
3. Entitlement to service connection for swelling of the
feet and ankles.
4. Entitlement to service connection for a strain of the
chest muscle.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The Veteran in this case served on active duty from June 1956
to June 1958 and was a member of the Texas Army National
Guard until February 1995, when he was transferred to the
retired reserve of the United States Army. He was retired
from the United States Army in October 1997. He had a period
of active duty for training from July 30 to August 13, 1983,
but no other periods of inactive duty training or active duty
for training have been verified to date.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2002 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in North Little Rock, Arkansas. The Board remanded this
case in July 2004 and denied the Veteran's claims in August
2008. In July 2009, the Veteran, through his representative,
and the VA General Counsel (herein "the parties") filed a
Joint Motion for Remand addressing all of his claims. The
United States Court of Appeals for Veterans Claims (Court)
granted this motion in July 2009, and the case is again
before the Board.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran
if further action is required.
REMAND
Subsequent to the July 2004 remand, the AMC underwent
extensive efforts to corroborate the Veteran's periods of
inactive duty training, active duty training (ACDUTRA), and
active duty. These efforts included communications with the
Veteran, the Adjutant General of the Texas Army National
Guard, the State Adjutant General of Minnesota, and the
National Personnel Records Center (NPRC).
In the July 2009 Joint Motion for Remand, however, the
parties found these efforts to be inadequate. First, the
parties noted that that the AMC had not contacted the NPRC
for records for the entire period (1976-1994) during which
the Veteran earned points for ACDUTRA; rather, the
correspondence with NPRC in September 2006 concerned only the
1991-92 period. Second, the AMC did not prepare a memorandum
of unavailability conforming to the requirements of M21-1MR,
III.iii.2.I.59.c, and the Veteran was not properly informed
of such unavailability. In view of this, corrective action
will need to be taken on remand.
Accordingly, the case is REMANDED for the following action:
1. The AMC/RO should contact the NPRC and
request all documentation for the
Veteran's ACDUTRA for the entire period
from 1976 to 1994, including service
personnel records documenting the dates of
ACDUTRA. All correspondence received from
NPRC must be added to the claims file.
2. If further contacts with the NPRC do
not lead to records confirming additional
ACDUTRA, a memorandum of unavailability
conforming to the requirements of M21-1MR,
III.iii.2.I.59.c must be prepared. The
Veteran must be given proper notice of
this memorandum and an appropriate period
of time in which to respond.
3. Then, after ensuring that any
additional development that is indicated
by the record has been accomplished, the
Veteran's claims should be readjudicated.
If the determination of any of these
claims remains unfavorable to the Veteran,
he and his representative must be
furnished with a Supplemental Statement of
the Case and given an opportunity to
respond before this case is returned to
the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).